Tuesday, July 29, 2008

Nighttime Execution Without Statement of Additional Reasonable Cause

Under Pa.R.Crim.Pro. 203(E), nighttime searches are prohibited by warrant unless the affidavit shows reasonable cause for a nighttime search. Commonwealth v. Baldwin, 384 A.2d 945 (PaSuper 1978). “Nighttime” is defined as the time period between 10:00 p.m. and 6:00 am. Pa.R.Crim.Pro. 206(7).

In the instant case, the search was conducted at 5:53 am., a time that Pennsylvania would consider “nighttime,” and as such, Pennsylvania requires that the affidavit contain facts which would support the reasonableness of such a search. The affidavit here is devoid of any facts which would support nighthme entry. See Affidavit Exhibit 1.

Because of the aforementioned defects, the issuance of the warrant, the search of the home and the seizure of these items was unreasonable and violative of the Fourth and Fourteenth Amendments of the United States Constitution, Article 1 Section 8 of the Pennsylvania State Constitution and violative of Pennsylvania statutory and case authority.

Any one of the previously mentioned defects would independently give rise to the relief of suppression of evidence, fruits, and argument regarding same, Taken in toto, it is clear that the issuance of the warrant, the search of the home and the seizure of evidence under this warrant did not even approach compliance with Pennsylvania’s warrant requirements. The fact that seven Pennsylvania law enforcement authorities familiar with Pennsylvania law were present during both the issuance and execution of the warrant and failed to require Virginia authorities to take the additional safeguards Pennsylvania would require is inexcusable, especially where a human being’s very life is at stake and the additional requirements were minimal.

Instead, the Commonwealth now asks this Court to remedy its failures in very basic and firmly rooted areas touching on fundamental rights. This Court, for the reasons stated above, should decide the issue under Pennsylvania law and suppress the evidence seized from the defendant’s home and further preclude any references to or argument regarding same during trial.